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Decision No. 13,925

Appeal of JOHN O'BOMSAWIN from action of the Board of Education of the Wynantskill Union Free School District with regard to a petition for a special district meeting.

Decision No. 13,925

(April 22, 1998)

MILLS, Commissioner.--Petitioner, a resident of the Wynantskill Union Free School District, appeals respondent's failure to take action with respect to a petition to hold a special district meeting to fill a board vacancy. The appeal must be dismissed.

On August 27, 1996, a petition was served upon respondent pursuant to Education Law "2008(2). The petition was signed by over 5% of the voters who participated in the last district-wide election and requested that a special district election be held to fill a board vacancy caused by the death of a board member on August 14, 1996.

Petitioner commenced this appeal on November 10, 1996 by personal service of a copy of the petition on the district clerk. Petitioner requests that I order respondent, pursuant to Education Law "2113(2), to hold a special election to fill the vacated seat.

Respondent has not submitted an answer pursuant to 8 NYCRR "275.12 and "275.13. Accordingly, the factual allegations set forth in the petition are deemed to be true statements that have been admitted by respondent (8 NYCRR "275.11; Appeal of T.B., 35 Ed Dept Rep 408). In addition, although respondent's board president and vice-president, and an attorney, have submitted correspondence relating to this appeal, such correspondence was not submitted in accordance with "276.5 of the Commissioner's regulations and therefore is not part of the record and will not be considered in this appeal.

Nevertheless, the appeal must be dismissed. While "2008(2) allows for the filing of a petition requesting a special district meeting, the statute expressly provides that a board of education is not required to call such meeting where the purpose for which the meeting is sought is not within the powers of the voters of the district (Education Law "2008(2)(a); Application of Beadle, et al., 25 Ed Dept Rep 267). Education Law "1709(17) provides that it is the duty and responsibility of the board of education to fill vacancies on the board by appointment by the remaining board members. While Education Law "2113 provides permissive, alternative methods to fill such vacancies, including filling such position by election, the provisions of Education Law "2113 and "2008 do not supercede the powers granted to the board under Education Law "1709(17) (Appeal of Concerned Taxpayers Awareness Group, 35 Ed Dept Rep 448; Matter of Rosenbaum, 9 Ed Dept Rep 95; Matter of Stephan, 76 St Dept Rep 114). Since the authority to fill a vacancy by appointment or by special election is vested in the board of education, respondent was not bound to call a special election to fill such vacancy where a petition to that effect has been submitted to it (Matter of Stephan, supra).

Furthermore, although provision is made in Education Law "2113(2) for the Commissioner to order a special election to fill a vacancy, that provision is meant to be a last resort where, for various reasons, an appointment by the board or a special election held by the board are not available (Matter of Stephan, supra). The record establishes that respondent failed to fill the board vacancy during the period August 14, 1996 through November 10, 1996. The September 19, 1996 board minutes indicate that the board discussed the filling of the vacancy and directed that an advertisement be published for the board member position, with further discussion to occur at the next meeting of the board. There have been no further submissions by petitioner pursuant to "276.5 of the Commissioner's regulations to demonstrate respondent's inability since November 10, 1996 to fill the vacancy either by appointment or by special election, so as to require me to order a special election.

While the appeal must be dismissed, I admonish respondent that when a petition for a special meeting is submitted to the board pursuant to Education Law "2008(2), the board must take formal action to accept or reject the petition within 20 days of the filing of such petition (Education Law "2008(2); Appeal of Swanson, 29 Ed Dept Rep 453). I also remind respondent of its responsibility to submit an answer pursuant to ""275.12 and 275.13 of the Commissioner's regulations.